The NLRB is a Four-Letter Word to HR

by JON HYMAN

As a partner at Meyers Roman, I apply my 17 years of experience to provide proactive and results-driven solutions to employers’ workforce problems.

I concentrate my practice in the representation of companies in labor and employment disputes. My representation extends beyond the courtroom, into various state and federal administrative agencies. My recent victories for clients include winning the decertification of a wage and hour class action, obtaining summary judgment in a discrimination and retaliation lawsuit, prevailing in a jury trial on breach of a non-competition agreement, and achieving the decertification of a labor union.

Complementing my litigation practice, I also advise individuals and companies on a wide-range of employment, human relations, and labor-relations issues. I serve as an “outside in-house counsel” for businesses that lack an in-house labor & employment attorney. In this role, I draft policies and handbooks, audit HR practices and procedures, and advise companies on day-to-day HR issues such as employee discipline and terminations and workplace investigations.

Webinar Transcript

Jon Hyman, a partner of Cleveland's Meyers, Roman, Friedberg, and Lewis provides proactive solutions to businesses' workplace problems. The author is a nationally recognized and multiple award-winning Ohio Employer's Law Blog in addition to two books, Think Before You Click and The Employer Bill of Rights. Jon is an in-demand speaker, having lectured around the country on social media and other workplace legal issues. Jon offers his insight as a member of Workforce Magazine's Editorial Advisory Board and the Ohio Chamber of Commerce's Employment Law Committee. Most recently, Jon Stossol featured Jon on an episode of his Fox Business television show. Finally, Jon appeared on a November 1999 episode of Who Wants to be a Millionaire, but sadly lacked the fastest fingers. And now, please welcome to Elevate 2015, Jon Hyman.

Well, hello and thank you everybody for joining me today. I'm talking about the National Labor Relations Board. Is the NLRB a four-letter word? Or maybe accurately the NLRB is a four-letter word. We live in a largely non-union world. The unions cover somewhere in the neighborhood of 7% collectively bargained employees; around 7% of the American workers are collectively bargained in labor unions. Which you think in a world where 93% or almost all, we're in a country where almost all employees are not collectively bargained. You would the National Labor Relations Board wouldn't necessarily make a lot of noise. That, however, is very much not the case. The NLRB has largely, over the span of the last several years, taken the Democratic administration that we're currently operating under as a referendum, as a rallying cry, really gotten behind the power they have in Washington and it's really staked out its claim as an agency of tremendous power and has, as we're going to talk about it a little bit, has really looked to expand that power.

In my practice, I'm a labor employment lawyer management side sitting in Cleveland, Ohio. My practice, which for years was, I would say 95%, employee relations, discrimination, harassment, what have you. The amount of collective bargaining activity that I've seen has dramatically increased over the last couple of years. And that's largely a part to what the National Labor Relations Board has done in this area. The National Labor Relations Board got started trying to expand their power a couple of years ago in an area of what's called Protected Concerted Activity. To give you kind of the 40,000-foot view of what this means, employees have the right under the National Labor Relations Act to engage a protected concerted activity, which means they have the right to talk between and among themselves about wages, hours, terms, conditions of employment, regardless of whether or not they're in the labor union. This reaches all employees, union, non-union, it doesn't make a difference.

The NLRB, I think, recognizing that while unions are 7%, they had a tool already at their disposal that will allow them to reach the other 93% or 100% of all private-sector employees in the United States, started flexing their Protected Concerted Activities muscles the first part of this decade, back in 2010, 2011. And they did it in a way that the NLRB thought would garner the most attention, which was in the world of social media. The NLRB started issuing complaints, coming up with policy memoranda, what have you, basically telling employees, "If you complain about work online and you're fired, come to us, we'll help you out." And the NLRB has positioned themselves to really be the agency of last recourse for employees who are fired, disciplined, what have you, for things they say or do online about the work place.

Let me give you a quick example of what this looks like in the real world based on a real case. It's a nice example because the case involves both Protected Concerted Activity and Non-Protected Concerted Activity. So you can see...get the nice juxtaposition of what this type of activity looks like and doesn't look like. The case involved a salesman at a BMW dealership in Chicago who was displeased with the fact that the dealership, as a part of a promotional event to launch a new line of BMWs, was going to have a carnival theme. They were going to have clowns and balloon animals and hot dogs and chips and bottles of water and soda and what have you. This particular car salesman thought that this event was beneath the stature or esteem of BMW and started talking to other salespeople, his coworkers about it and then went on the dealership's Facebook page to air his grievances about his displeasure with the theme, the branding of this particular dealership event. Okay, put that aside for a second.

A week later, a sister dealership...there was a Land Rover dealership across the street owned by the same people and they had a really good customer. And to appease this really good customer, they gave the keys to a car to test drive to this customer's 13-year old kid. The 13-year old kid proceeds to roll the Land Rover in a ditch right in front of the BMW dealership across the street. And the same sales person thought that was so funny that he took a picture and posted on his personal Facebook Page. One of his coworkers that he was Facebook friends with saw it, printed it out, gave it to management. Management was unhappy that he was ridiculing this kid that got hurt and they fired him. He filed a charged with the NLRB saying, "I was fired because I complained on my employer's Facebook Page about this carnival-themed event. I'm a commissioned salesperson who's taking money out of my pocket if I don't sell cars. Therefore, it was Protected Concerted Activity. And that's why I was fired."

The NLRB agreed with him said, "You know what, you're right. That is Protected Concerted Activity. You're commissioned. If you feel you're going to lose sales, that's going to take money out of your pocket, you're complaining about wages, you're absolutely right. That is Protected Concerted Activity. However, we don't think that's why you were fired. We actually think you were fired because you posted this inappropriate photograph of this upside-down car in front of the dealership. So employee, you lose." A really nice example of what Protected Concerted Activity looks like, this post about this promotional event, wages, what have you and what it doesn't look like, this supposedly joking post about this upside-down car. Juxtaposition illustrating the protections employees enjoy and don't enjoy.

The case was decided last week out of a federal appeals court out of New York affirming another decision, where the NLRB went as far as to say, "Even the mere act of clicking the like button on Facebook can be an expression of Protected Concerted Activity if you're liking a post that a co-worker wrote complaining about something going on at work." So the NLRB gotten very, very active in this area as a way, I think, to capture not just the 7% of collectively bargained employees but the 100% of all employees that the NLRA, National Labor Relations Act, covers in this particular area. And not just with discipline and terminations but also with social media policies.

The NLRB has gotten very, very active issuing decisions, writing policy memoranda, taking issue with a whole host of what I think are pretty vanilla, pretty garden-variety social media policies. You have policies like Don't Post Confidential Information. You have policies like Don't Post Photographs of Insignias or Logos. You have policies like Be Respectful. All of which the NLRB says, "We can imagine a hypothetical situation where, in a union organizing drive, you may post confidential information or you might not be respectful or you might post a photograph that has a pro-union logo." And so the NLRB says, "Because we can imagine, down this parade of horribles, a hypothetical situation where there's a one in a million chance where maybe a union might be implicated by this very neutral, very vanilla, very plain-Jane policy that you have in your handbook. "Dear employer, we find that policy to be overly broad or overly restrictive on employee's rights to engage in Protected Concerted Activity."

I can talk for an hour on all the different ways the NLRB is pulling apart really ordinary policies. But I think the main takeaway here is for employers, if you have an employee handbook that's been on your shelf for the last five years that you had not reviewed or have an attorney review, now is the time to do it because the NLRB has gotten very, very active in this area. Lots of policies that, only 18 months ago, we as management-side lawyers thought were fine in reality are not fine. The NLRB says, "These are overly broad and need to be rewritten." And a handbook that you did maybe even as far back as a couple of years ago now very well might be illegal under the view that the NLRB is currently taking about some pretty vanilla workplace policies.

Another area that tacks all employers, not just those that are collectively bargained deals with corporate email and e-communications. In a decision called Purple Communications, the NLRB earlier this year said, "It's not enough for you to...or it's illegal for you, employer, to lock down your email systems and not allow employees to access that system for union-related communications and correspondence if you make your network available to employees to use." So employees have a ABC co-email address, you have to permit them to use that email address to engage in union-related activities, solicitations, emails, correspondence, communications, what have you.

A law has been written about this case. Actually this case is not as big a deal as many have made it out to be because while employers now have to rewrite their policies to tell employees that their email systems are open and available for them to engage in this pro-union or union-related activity, solicitations, communications. The reality is you're not ceding ownership to the employees or to the labor unions. You still own the emails. You still own your servers, and so if employees are going to be using your corporate email to engage in union-related activities, it's not private to the employees or to the union. You still have the right to see it if it goes through your server, and so I don't think this case is as big of a deal as a lot have made it out to be. It might be even advantageous to you because you then have access to emails you otherwise might not have access to. But be that as it may, another example of how the NLRB is trying to expand their influence beyond the 7% of employees that are in labor unions and collectively bargained.

Perhaps the biggest decision that the NLRB has come out with maybe in the last decade is on the issue of joint employers and joint employment. Historically, the case had been that...let me back up for a second. When I talk about joint employers, we're talking about two entities independent of each other that potentially have control over groups, over the same group of employees. So if you think a staffing agency that places employees at a company, it's possible that both the staffing agency and the company at which the employees are performing services are both employers of those employees. That's a traditional joint employment type relationship.

The NLRB historically has taken the position that in order for two entities to be joint employers over a group of employees, both entities have to actually exercise control over those employees. Without actual control, no joint employment. Only the entity that actually exercises control would be the employer of that group of employees. If you think about the sphere in which this has potentially the most impact, franchise or franchisee relationship. McDonald's licenses their uniforms, colors, how the restaurants look, recipes, food, menus, all that to their franchisees, who then use it to run their independent businesses. The employees are hired by, disciplined, fired by, controlled and paid by the franchisees, not McDonald's corporation. The NLRB in a decision a few months ago takes the position that actual control is no longer all that's going to take in order to establish this joint employer relationship.

The NLRB has actually expanded the definition dramatically. So it's now not just actual control. But it's now actual control or even potential control. The mere potentiality, the mere possibility that an organization or an entity could exercise control over the employees of another is enough to make that entity a joint employer of those employees, make them responsible for their collective bargaining obligations, unfair labor practices, and what have you. The impact of this really cannot be overstated or there hasn't been a decision yet in the world of franchisee or franchisors. It's coming because McDonald's, for example, in their franchise, and I'm using McDonald's as a standard bearer of all franchisors, but because McDonald's, for example, requires its franchisees to, in turn, require the employees to dress a certain way, act a certain way, sell a certain type of food, say certain things when customers come to the counter, or what have you, the NLRB is going to take the position that McDonald's exercises potential control, McDonald's franchisor corporation exercises potential control over these employees and, therefore, is going to be a joint employer. Potentially devastating for business models like franchisor-franchisee staffing agency and the company at which employees are placed. General contractors and subcontractors in the construction industry and what have you, because I think they're all going to ultimately, with this new very, very liberal standard be deemed to be employers over employees that they really, at the end of the day, have absolutely nothing to do with.

The last issue I want to talk about in the time I have left with you in today's presentation deals with the way the NLRB is liberalizing how union elections are held to really, I think, in an attempt to move the needle to try to favor unions more in union-organizing campaigns. Traditionally, let me backup for a second, labor unions become certified to represent employees of an employer for collective bargaining purposes typically by a showing of interest. They get signed cards or petition from employees. You only need 30% to hold a secret ballot election. You're going to have an election and if the union gets 50% plus 1, a simple majority of employees in the bargaining unit, the union wins and becomes the bargaining representative for all employees in that unit.

Traditionally, there was a window of time between which the representation petition was filed with the NLRB by a labor union and the election was held. That was in the 40 to 50-day range. And it really gave employers a decent amount of time to get their message out to employees to say, "This is why we think you should vote for us and not for the labor union." You'd have employers would have the ability to run pretty successful or hopes of running a successful anti-union campaigns in the wake of an organizing petition to try to defeat the labor union.

The NLRB this year has, in an effort to move the needle, to having more unions win elections, depending on what side of the coin you fall on, either expedited election rules if you are pro-union; if you're pro-management, we call them ambush election rules, which has shifted the time frame back, ratcheted the time frame back significantly. So now it's not just...it's no longer 40 to 50 days that you have to...between petition and election but it's now something like 10, 20 days. And once that petition is filed that there's going to be an election held within two to three weeks, employers just do not have the time to manage effective, meaningful campaigns in response to a union-organizing petition. In that short amount of time, as an employer, you just don't have enough time to effectively get your message out to communicate to employees why they should vote against the labor union.

On top of that, the NLRB has made it significantly easier for employees to sign union petitions. They used to have to hand-sign a card, a piece of paper showing their, expressing their interest to have an election whether the union is going to be certified to be the bargaining representative of the group of employees. In the last few months, the NLRB has shifted that to not just a hand-signed card, a hand-signed piece of paper, but the NLRB will also accept electronically signed petitions, emails for example, from employees saying, "Look, we want this union to represent us."

Put aside for a second the potential for fraud. The NLRB has put some checks and balances in place to try to mitigate against that risk. But again, making it significantly easier for labor unions to get these election petitions in front of the employer in a much shorter amount of time by gathering these e-signatures and then having the election in a much...everything now is much, much more compact. Everything can be done electronically. The elections are held much, much quicker. All of which means that labor unions...the needle really has been shifted. And so employers have to get much, much more proactive with how they approach labor unions potentially coming into the workplace.

I advocate for what I call the TEAM approach to union avoidance in a non-union workplace. TEAM stands for Train supervisors, Educate your employees, Affirm the open door, Modernize your policies. Okay, what does that mean? I want to quickly and succinctly breakdown for you what each one of these steps means. Starting with step one, which is training your supervisors. You need to understand why employees organize in the first place. Most people think employees organize, go to labor unions because they want higher wages, more wages, more benefits. That's not the case. Employees organize because they feel disrespected, because there's lack of communication between management and employees and because they perceive unequal treatment in the workplace. That's why, primarily, empirically why employees organize.

And you need to understand that your supervisors are going to be your first line of defense when you are potentially facing a union-organizing campaign. They're the ones who are going to be able to recognize, before the petition is even filed, whether there are employees that are thinking about joining a labor union. And as soon as you get the first whiff that a union is out there sniffing around your employees, you need to act because you just don't have the time anymore once that petition is filed to effectively communicate your message. And so you need to train your supervisors on what to look for if a union is potentially sniffing around.

And things could be very innocuous if you don't know what you're looking for, things like small groups of employees gathering in unusual places, employees that typically don't get together socializing outside of work, people acting out of character, anti-company graffiti appearing around the workplace, increased chatter about wages, benefits, what have you, all potential signs that there is a union sniffing around.

Step two is educating your employees. You need to communicate to your employees, before the union ever gets a foot in the door, why they should not support labor unions. Some good talking points for you and your supervisors to have with employees are things like you're going to lose the ability to communicate with us directly. You have to go through a third party, the union. Employees will no longer be rewarded on performance but will instead get promotions, pay raises, what have you based solely on seniority. Whether you support the union or not, you're going to have to pay union dues. We're all going to lose control over things like working hours, working conditions, what have you. And whose interest is the union really working? Is it your interest, is it their interest? What are you really paying for with the labor union? And have a formal position on labor union. Have a policy in your hand book telling your employees why you think labor unions are a bad idea.

People are so afraid to even mention the word...employers are so afraid to even mention the word "union," they don't want to plant that seed with their employees, but I got news for you. With the ambush election rules in place now, once the union comes in, it's too late to get this message across unless you planted the seed with your employees very, very early on. And the best place to start is day one of employment when you hand a new hire their employee handbook as part of your onboarding process, to have that policy right in the handbook, right up front, where they can see, "We're non-union workplace. We're proud we're non-union work place. And Joe, new hire, this is why."

Step three, affirm the open door. One of the main reasons, as I said earlier, why employees run off to labor unions is because they feel there's a lack of communication between management and employees. Have an Open-Door Policy and not just have it on piece of paper but live it. Make it real. Make sure it's carried out day to day. Make sure that employees understand that...not just through your words but by your actions that, "Look, management is not your enemy. We're your friend. And if you have a problem, come to us. We will help you out. We will listen to your concern. We'll do what we can. We want to make this a collaborative atmosphere."

If employees feel that they're part of a team, part of a collaborative atmosphere, much, much less likely to run off to a labor union, much less likely you're going to get that petition in the mail from the National Labor Relations Board that you're going to have such a short amount of time to respond to.

And lastly, the M in TEAM, Modernize your policies. What kind of policies are we talking about? We talked a little bit earlier about the NLRB's activity around social media policies and the importance of modernizing those. The most important policy you could have, separate from your statement about labor unions in your employee handbook, is your No Solicitation policy, policy telling employees...and understand that policy now has to also tell employees under the Purple Communications Decision that you can use our email system to solicit or communicate if you have access to that system otherwise. But telling employees, "Look, work time is work time, and you're not allowed to engage in non-work related activities, solicitations for example, in our working space and during working time." That has to be limited to non-work areas and non-work time. That will really go a long way to helping communicate to your employees, "Keep that union chatter off the shop floor, keeping focused on work."

And an example of what this potential non-solicitation policy could look like, should look like in your handbook. Employees should not be allowed to canvass or solicit other employees for any purpose on company premises during working hours. You can do it during non-working hours, etc. So the NLRB, I said at the beginning of this, has gotten extraordinarily active in the area of trying to increase its sphere of influence. It's done it by trying to reach non-union employees via their communications about work, letting employees realize, "Look, employees if you're fired or disciplined for what you say or do about work, come to us. We want to be your agency of recourse by regulating what employers put in their handbooks and then by making it significantly easier for employees to form labor unions by opening up computer systems to solicitations, by significantly ramping up the time frame for which employees have to organize and the like."

You need to be thinking about these issues if you're a non-union employer. Once the petition comes in the mail, once you get notice that the NLRB is going to be holding an election, it really is too late. So I cannot more strongly advocate, suggest what I call my TEAM approach to union avoidance in the workplace. Train, Educate, Affirm the open door, Modernize your policies. It's a quick, succinct, easy-to-remember four-step process that will put you in the best possible position to go ahead and knock down that union when they come knocking on the door. Because once they come knocking, I cannot more strongly emphasize that at that point it really and truly is going to be too late.

So with that, I thank everybody for your time today. Thanks for listening. And again, I'm Jon Hyman of Meyers, Roman, Friedberg and Lewis, management-side labor lawyer practicing out of Cleveland, Ohio. Thank you all and everyone have a great day.